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2005 DIGILAW 555 (PNJ)

Rajinder Singh v. State Of Punjab

2005-05-03

AMAR DUTT, BALDEV SINGH

body2005
Judgment Amar Dutt, J. 1. This judgment will dispose of Criminal Appeal No. 645-DB of 1996 filed by Lambardar and Criminal Appeal No. 838-DB of 2002 filed by Rajinder Singh to challenge the conviction and sentence recorded against them by the Sessions Judge, Ludhiana on 12.8.1996. 2. Briefly stated, the prosecution case, as brought out in the testimony of its witnesses, is that on 6.1.1995 at about 5 A.M. Azad Singh (PW-4), Jit Singh (PW-5), Ram Pal and Naresh Kumar, residents of Mandi Mullanpur were going towards the railway line in order to answer the call of nature when they saw the appellants dragging a dead body, which was eventually found to be that of Baljit Singh alias Ballu, brother of Azad Singh PW-4, towards the railway line and throwing the same on the railway track and before these witnesses, both the appellants confessed that they had killed Baljit Singh alias Ballu at 2 A.M. after going to the house of Baljit Singh alias Ballu where Rajinder Singh had given a blow with kulhari and Lambardar had given a blow with Bahi on the head of the deceased and were removing the dead body to the railway line to destroy the evidence of murder on account of his illicit intimacy with the wife of Rajinder Singh. After leaving Ram Pal near the dead body, Azad Singh, Jit Singh and Naresh Kumar took the appellants to Police Station, Dakha where they were produced before Inspector Sant Singh (PW-7). On the basis of the statement made by Azad Singh (PW-4), the FIR Ex. PD was drawn up and the appellants formally arrested. The dead body was sent for post mortem examination through Constable Om Parkash. After conducting post mortem examination on 6.1.1995, Dr. Satbir Singh (PW-1) gave his report Ex. PA. The appellants were interrogated by the Investigating Officer in the presence of Jit Singh and S.I. Nirbhai Singh and during interrogation, Rajinder Singh had made a disclosure statement Ex. PH about his having kept concealed one Kulhari in a heap of woods lying in his house. This kulhari had been got discovered in pursuance of the disclosure statement of Rajinder Singh and was eventually taken into possession by the police through recovery memo Ex. PK. Similarly, Lambardar had made a disclosure statement Ex. PH about his having kept concealed one Kulhari in a heap of woods lying in his house. This kulhari had been got discovered in pursuance of the disclosure statement of Rajinder Singh and was eventually taken into possession by the police through recovery memo Ex. PK. Similarly, Lambardar had made a disclosure statement Ex. PJ about his having kept concealed Bahi and the same was got discovered and taken into possession through recovery memo Ex. PL. Thereafter, the Investigating Officer took into possession blood-stained blanket Ex. P-3, which Rajinder Singh was wrapping around himself, through recovery memo Ex. PE. The blood-stained trouser Ex. P-3 worn by Lambardar was also taken into possession through recovery memo Ex. PF. Thereafter, Inspector Sant Singh went to the spot, collected blood-stained earth from there and took the same into possession through recovery memo Ex. PM. The same were forwarded to the Chemical Examiner and Serologist for examination. The Chemical Examiner through report Ex. PR found the clothes of the deceased and pieces of stone to be stained with blood, which, according to the report of the Serilogist Ex. PS was, except on the Bahi, to be of human origin. On completion of the investigation, the challan was put in Court against the appellants and the Illaqa Magistrate committed the same to the Court of Sessions for trial. 3. The Sessions Judge, Ludhiana had on examination of the papers sent up with the challan found that a prima facie case was made out against the appellants and accordingly, framed the charge under Section 302 IPC against them, to which they pleaded not guilty whereafter the prosecution was called upon to examine its witnesses. 4. The prosecution examined PW-1 Dr. Satbir Singh; PW-2 Constable Om Parkash; PW-3 Constable Gurmukh Singh; PW-4 Azad Singh; PW-5 Jit Singh; PW-6 Sukhwinder Singh; PW-7 Inspector (now DSP) Sant Singh and PW-8 MHC Joginder Singh. 5. On completion of the evidence, when the incriminating circumstances were put to the appellants under Section 313 Cr.P.C., they denied all of them and asserted that they were innocent and have been falsely implicated in this case. Krishna wife of Rajinder Singh was examined in defence as DW-1 and she denied that she had any illicit relations with any one of the appellants. 6. Krishna wife of Rajinder Singh was examined in defence as DW-1 and she denied that she had any illicit relations with any one of the appellants. 6. After hearing the arguments, the trial Court relied upon the testimony of Azad Singh PW-4 and Jit Singh PW-5 for coming to the conclusion that the case against the appellants had been proved beyond reasonable doubt and convicted them under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each and in default of (sic) months. Hence, the present appeals. 7. We have heard learned counsel for the appellants and learned State counsel and perused the record. 8. The case against the appellants is based primarily on the confessions made by them before Azad Singh PW-4, Jit Singh PW-5, Ram Pal and Naresh Kumar, residents of Mandi Mullanpur on the morning of 6.1.1995. Azad Singh PW-4 and Jit Singh PW-5 talk about their having apprehended the appellants in the morning in between 5/5.30 A.M. They were caught dragging a dead body and throwing it between the railway track. This body was identified as that of Baljit Singh alias Ballu, brother of Azad Singh PW-4, who had after the appellants had been apprehended by him and his three companions enquired from them about the identity of the dead body. During this enquiry, the appellants had in the words of Jit Singh PW-5 told "that it was of Baljit Singh. Rajinder accused had also told us that Baljit Singh had illicit relations with his wife and that he had desisted the deceased once or twice from carrying on the illicit intimacy but he continued carrying on relations with her and that during the night at about 2 A.M. both of them went to the room of the deceased in mohalla Balmiki Basti and that he hit the deceased on his head with a Kulhari and Lambardar hit him on his head with a Bahi. Both of them had informed us that they had thrown the dead body on the railway line, so that it may appear to be a case of an accidental death and they may be saved." 9. Both of them had informed us that they had thrown the dead body on the railway line, so that it may appear to be a case of an accidental death and they may be saved." 9. After their apprehension, the appellants had been taken to Police Station Dakha, which is only about 15 to 20 yards from the spot where the dead body was dumped and got the FIR registered. During interrogation, the appellants had made separate disclosure statements pursuant thereto, they had got discovered the weapons of offence used by each of them. The occurrence, according to what had been told by the appellants as is evident from the examination-in-chief of Azad Singh PW-4, had taken place at about 2 A.M. and though there is no information available as to what was the distance of the room of Baljit Singh from the place where he was finally laid down in between the railway lines, it can safely be presumed that the same would be situated near the railway line as it is inconceivable that they would have been taken the dead body all over Dakha City before dumping it in between the railway line. Another improbability, which hits us immediately is why the appellants did not try and dispose of the dead body for 3-/12 hours and waited until the time when the residents of Balmiki Basti would start moving out of their houses for easing themselves in the pits, which adjoin the railway line. 10. There is another angle, from which the veracity of the confession that was stated to have been made by the appellants before Azad Singh PW-4 and Jit Singh PW-5 has to be examined in view of the fact that the appellants deny having made the confession is the question as to whether the circumstances brought out in the confession are corroborated by independent evidence. Both of the appellants state that the initial assault was opened by Rajinder Singh, who gave a blow on the head of the deceased with a Kulhari and thereafter Lambardar had given a blow with Bahi. Dr. Satbir Singh PW-1, who performed the post-mortem examination on the dead body of Baljit Singh found the following six injuries :- 1. Abrasion 4" x 2.5" on left side of face, zygomatic region extending below left eye. 2. Incised wound 1.5" x 5" on left side of chin, bone deep. 3. Dr. Satbir Singh PW-1, who performed the post-mortem examination on the dead body of Baljit Singh found the following six injuries :- 1. Abrasion 4" x 2.5" on left side of face, zygomatic region extending below left eye. 2. Incised wound 1.5" x 5" on left side of chin, bone deep. 3. An incised wound 3" x 0.75" bone deep placed on left frontal region on scalp, starting from hair line and extending backwards slightly diagonally placed. 4. An incised wound 1.5" x 0.5" placed horizontally on right parietal region posteriorly bone deep. 5. Stab incised wound 0.75" x 1/2" muscle deep near left axilla posteriorly placed. 6. Multiple abrasions all over back of chest. four of which are incised wounds, which include one stab incised wound. Although injuries No. 2 to 4 could have been caused with a kulhari but in our opinion, there is no way in which injury No. 5 could have been caused by a Kulhari, the only weapon, which is alleged to have been used by Rajinder Singh. The prosecution has not cared to have the opinion of the doctor as regards to which of these injuries could have been caused by which weapon. Not only this, the public Prosecutor has also not taken pains to get explained the manner in which a single blow as is alleged to have been given by the appellants in their confessions before the witnesses resulted in four incised wounds. No effort has also been made by the prosecution to explain the multiple abrasions that have been found in the post-mortem examination nor has the Investigating Agency tried to find out any corroboration for the allegations that the appellants were seen dragging the dead body towards the railway line, which would have certainly left some drag marks leading up to the line. According to the prosecution, a blow had been given by Lambardar appellant with a Bahi but there is no evidence of any of the injury found on the body of Baljit Singh that may have been caused with a Bahi. Furthermore, if the appellants were trying to cover up the leads of their crime by making it appear that the death was caused accidentally, evidence should have been collected by the Investigating Agency to prove that near about the time of their apprehension any train was likely to pass on the railway track. Furthermore, if the appellants were trying to cover up the leads of their crime by making it appear that the death was caused accidentally, evidence should have been collected by the Investigating Agency to prove that near about the time of their apprehension any train was likely to pass on the railway track. Rules of prudence, which have now been crystalised into well established legal norms require the Courts of law to seek independent corroboration of retracted confessions whether judicial or extra judicial. Reliance in this regard is place on the judgment of Ram Parkash v. The State of Punjab, AIR 1959 SC 1, wherein it has been held as under :- "The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the co-accused or the confessing accused. Accordingly, the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his co-accused. Not a single decision of any of the Courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a co-accused. A examination of the reported decisions of the various High Courts in India indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against a co-accused by virtue of the provisions of Section 30 of the Indian Evidence Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co-accused with that crime. In our opinion, there appears to be considerable justification for this view. The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case. Although a retracted confession is admissible against a co-accused by virtue of Section 30 of the Indian Evidence Act, as a matter of prudence and practice a Court would not ordinarily act upon it to convict a co-accused without corroboration." 11. Although a retracted confession is admissible against a co-accused by virtue of Section 30 of the Indian Evidence Act, as a matter of prudence and practice a Court would not ordinarily act upon it to convict a co-accused without corroboration." 11. In the present case, such a corroboration is not forthcoming, rather the circumstances belie the story that has been put in the mouth of the appellants and, therefore, render doubtful the case that has been built up by the Investigating Agency against the appellants. Final nail in the prosecution case is available in the stand taken by DW-1 Krishna the wife of Rajinder Singh, who denies the alleged motive for killing Baljit Singh. 12. Looked at from any angle, we do not find any material on the basis of which we can uphold the findings returned by the trial Court that the prosecution has been able to prove its case against the appellants and giving them the benefit of doubt acquit them of the charge framed against them. Consequently, both the appeals succeed and are allowed.